KUNJ BEHARI SINGH Vs. BINDESHRI PRASAD SINGH

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of a suit on the basis of two mortgage- deeds for recovery of the principal and interest due on them. Previous to this litigation there was a suit instituted by the plaintiffs which was compromised, and the compromise decree is printed on p. 63 of the paper-book, tinder that decree it was agreed that the amount due on the two bonds would be Rs. 18,750-2-0 and that simple interest on that sum would be paid at the rate of eight-annas % per mensem from the date of the execution of the "document" up to the date of realization. Five instalments were fixed, the first one was of Rs. 3,750-0-4 payable with interest on 15 June 1924. There was an express provision that in default of payment of any instalment it was to be paid in a lump sum. There were further provisions in the decree which showed that the effect of the regular payment would be to prevent the mortgagees from bringing any suit to recover the amount due on the decree. The plaintiffs claimed that inasmuch as the defendants did not pay the first instalment on 15 June 1924, they were entitled to recover the full amount borrowed on the two documents. The principal defence was that on 15th June 1924, the civil Court was closed, and that a tender was actually filed on 3rd July 1924, when the Court reopened. The tender was signed by the judicial officer on 4 July 1924, and the cash was actually deposited in the Government. Treasury on the 5 July. The plea has found favour with the Court below which has held that inasmuch as the civil Court was closed on the 15 June the defendants were entitled to make the tender on the reopening date and that accordingly there was no default. For this view the learned Judge has relied on the recent Full Bench case of Mohammad Jan V/s. Sham Lal A.I.R. 1924 All. 218. The learned advocate for the respondents has strongly urged before us that under the terms of the decree the amount had to be deposited in Court in the execution department. In the next place it is argued that, even if that was not so, under Order 21, R. 1, his clients had the option of either paying the amount direct to the decree-holders or depositing it in Court, and inasmuch as they had the right to deposit it in Court they could wait till the civil Court reopened.

(2.) In our opinion the payment of the instalments and the right of the decree- holders to recover the amount due was not intended to be exercised through the execution Court. There is an express mention in the decree of the mortgagee's power to bring a suit and recover the amount. In that view it may be difficult to apply Order 21, Rule 1.

(3.) But assuming that the defendants had the power to make the payment direct to the mortgagees or to deposit the amount in Court, they cannot take advantage of the circumstance that the civil Court was closed on 15 June 1924. If the only course open to them had been to deposit it in Court and the Court was closed on the last date on which they could have made the deposit, then the ruling in the Full Bench case would have been applicable. That was a case of a deposit under a pre-emption decree, and in view of the provisions of Order 20, Rule 14 that deposit had to be made into Court. The judgment-debtors in that case had no option but to deposit the amount in Court, and accordingly it was held by the Full Bench that if the Court by its own act prevented the judgment-debtors from making the deposit within the time they should not be deprived of their right to do so, provided they came into Court at the first opportunity available, namely the reopening day of the Court. In the present case the defendants on their own showing had the option of making the payment to the mortgagees direct. From this they were in no way prevented on account of the Court being closed. They were not compelled to wait till the Court reopened. They had an opportunity available to them of which they did not take advantage. We do not therefore think that they were entitled to say that the time fixed in the compromise decree for the payment of the first instalment should be extended. Accordingly there was a default on 15 June 1924 which entitled the plaintiff's to claim the whole amount. As matters stand now all the dates fixed for the payment of all the instalments have expired and the whole amount has undoubtedly become due under the terms of the compromise decree. We accordingly allow the appeal with costs and setting aside the decree of the Court below decree the plaintiffs claim for the whole amount of Rs. 18,750-2-0 due on the two bonds as principal together with interest at eight-annas % per mensem from the dates of the execution of the hypothecation bonds. The amount lying in deposit in Court will of course be taken by the plaintiffs in satisfaction of part of their claim, but inasmuch as it was deposited too late and the mortgagees were not bound to accept it, interest will not cease to run on account of this deposit. The usual decree under Order 34 will be prepared and six months time from this date should be fixed for payment.